Why An Anti-Gay Court Decision In Texas Could Become The Next Great Gay Rights Victory

Texas is not exactly the first place that young gay couples are
likely to think of when they are looking for a welcoming community where
they can begin a family, but the city of Houston elected its openly gay Mayor Annise Parker (D)
to three consecutive terms. Shortly after her most recent electoral
victory, Parker announced that her city would provide health and life
insurance benefits to the same-sex spouses of Houston employees that are
legally married in other states — an announcement she deemed necessary
to bring her city into compliance with the Supreme Court’s most recent gay rights decisions.
The chair of her county’s Republican Party promptly labeled her nod
towards equality “one of the most egregious acts by an elected official
I’ve ever seen.” Then he filed a lawsuit seeking to block Parker’s
decision.
On Tuesday, State District Judge Lisa Millard issued a temporary order preventing Houston from extending these benefits to gay couples. Although Judge Millard’s order
does not provide much detail on why she did so, it’s not difficult to
guess why this happened. In 2001, Houston amended its charter to provide
that “[e]xcept as required by State or Federal law, the City of Houston
shall not provide employment benefits, including health care, to
persons other than employees, their legal spouses and dependent
children.” In 2005, the state of Texas amended its constitution to
provide that “[t]his state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”
These amendments, however, are likely to run headlong into a much higher authority — the United States Constitution.
Years before last June’s decision striking the unconstitutional Defense of Marriage Act, the Supreme Court held in Romer v. Evans
that a Colorado amendment forbidding gay rights legislation violates
the Constitution. “[L]aws singling out a certain class of citizens for
disfavored legal status or general hardships are rare,” Romer
explained, and “[a] law declaring that in general it shall be more
difficult for one group of citizens than for all others to seek aid from
the government is itself a denial of equal protection of the laws in
the most literal sense.”
Texas’s anti-gay amendment can be distinguished from the amendment at issue in Romer
because it is somewhat narrower — the Colorado amendment was a sweeping
ban on pro-gay laws while the Texas amendment forbids only marriage
equality or providing rights to same-sex couples that are “similar to
marriage.” Nevertheless, it would hardly be a stretch for the justices
to apply Romer to Texas and the 28 other states that enacted anti-gay constitutional amendments restricting marriage equality.
While there are five justices on the Supreme Court with fairly
consistent pro-gay records, several of these same justices have
indicated that they prefer an incremental approach
to a sweeping decision extending the blessings of liberty to gay
couples nationwide. In the lead up to the DOMA decision, Justice Ruth
Bader Ginsburg pointedly criticized Roe v. Wade for moving “too
far, too fast.” During oral arguments on the fate of California’s
anti-gay Proposition 8, Justice Sonia Sotomayor asked if there was any
way to limit a pro-gay decision to just California. Striking Texas’
anti-gay amendment — and similar bans on marriage equality throughout
the country — is a logical next incremental step now that DOMA is no
longer good law. While applying Romer to states like Texas
would do nothing for same-sex couples whose state or local legislature
is hostile to gay rights, it would also mean that pro-gay officials like
Mayor Parker would be as free to push equality as they are to enact any
other policy.
As Texas’ judiciary is notoriously conservative, it is difficult to imagine Romer
being applied to Texas’ anti-gay amendment by the state’s own courts.
Nevertheless, a case enabling the U.S. Supreme Court to strike Texas’
amendment could reach the justices as soon as next year.
(HT: Josh Blackman)